Defendant-Appellant Victor Manuel Torres-Castro appeals from his
convictions for possession of an unregistered firearm (sawed-off shotgun) (count
1), 26 U.S.C. §§ 5481, 5681(d) & 5871, and possession of a firearm by
an illegal
alien (count 2), 18 U.S.C. §§ 922(g)(5) & 924(a)(2). He was tried before a
jury,
found guilty, and sentenced to concurrent 46 month terms of imprisonment and
concurrent two-year terms of unsupervised release. On appeal, Mr. Torres-Castro
contests the district court's denial of his motion to suppress certain evidence and
statements obtained by Albuquerque police officers at his home on December 4,
2004. SeeUnited States v. Torres-Castro, 374 F. Supp. 2d 994 (D.N.M. 2005).
He agrees with the district court's holding that the police conducted an unlawful
protective sweep of his home, but he argues that the sweep and the shotgun shells
observed during the sweep tainted his consent to search for a shotgun, discovery
of the shotgun, and his later post-arrest statements to police. Accordingly, he
argues that the district court erred in refusing to suppress the shotgun shells, the
shotgun, and the statements made by him as fruit of the poisonous tree. Our
jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

On December 2, 2005, Albuquerque police encountered a fourteen-year-old
girl running down Central Avenue in Albuquerque, New Mexico. The girl told
police that her boyfriend was twenty years old, that he had been chasing her, and
that he had threatened to beat her. The police transported the girl to a police
substation where she identified her boyfriend as Mr. Torres-Castro. She informed
the police that Mr. Torres-Castro was an illegal alien who had been once
deported, that she and Mr. Torres-Castro had engaged in sex, that he possessed a
gun, that he had beaten her in the past and restrained her from leaving, and that he
had threatened to shoot anyone who tried to take her away. While at the station,
the girl identified a photograph of Mr. Torres-Castro, which allowed police to
verify his age and familiarize themselves with his appearance. Later that night,
the girl's mother informed police that she was in the process of obtaining a
restraining order against Mr. Torres-Castro.

Based on this information, police officers Dan Phel, Elder Guevara, and
Mark Elrick decided to visit Mr. Torres-Castro's home. They arrived at around
7:00 p.m. on December 4, 2004, intending to question him but not to arrest him.
The officers had neither an arrest warrant nor a search warrant. Before arriving at
the home, Officer Phel told Officers Guevara and Elrick that Mr. Torres-Castro
had a gun and had engaged in domestic violence. As the officers approached the
house, they identified Mr. Torres-Castro through a front window and noticed that
several other individuals were seated in the front room. While the officers were
looking through the window, one of the individuals in the home saw the officers
and said something to the other individuals, whereupon some left the front room
and moved elsewhere in the house.

Officer Phel then knocked on the front door, which Mr. Torres-Castro
opened. The officers were uniformed but did not draw their weapons. Officer
Phel asked permission for all officers to enter and talk to Mr. Torres-Castro.
Mr. Torres-Castro agreed, and all three officers entered the house. Officer Phel
began to question Mr. Torres-Castro about his relationship with his juvenile
girlfriend. During this time, Officers Elrick and Guevara noticed that several
individuals were in plain view in one or more back rooms. Officers Elrick and
Guevara then conducted a brief protective sweep of the other rooms in the house
and directed all individuals in the other rooms to return to the front room and be
seated. None of the individuals or Mr. Torres-Castro objected and all individuals
located in the home were assembled in the front room.

While conducting the protective sweep, Officer Elrick saw a box of shotgun
shells in a clear plastic bag on a shelf in an open closet in a bedroom. Officer
Elrick told the other officers about the shells but did not remove them. Officer
Elrick remained near the bedroom door while the other officers spoke with the
individuals in the front room.

Officer Guevara then asked each of the individuals if they had any weapons
and if they would consent to a search of the residence. During this questioning,
Officer Guevara specifically advised Mr. Torres-Castro in Spanish that he did not
have to answer. Officer Guevara testified that officer safety issues prompted his
questioning and that such safety issues arose after discovery of the shells and with
the officers' prior knowledge that Mr. Torres-Castro had a gun. R. Vol. III, at 44-45 (Tr. Feb. 5,
2005). Officer Phel testified that he did not intend to arrest Mr.
Torres-Castro based on the discovery of the shells because he did not know it was
illegal for him to possess them.

Officer Guevara eventually asked Mr. Torres-Castro, "Is there a shotgun in
the house? Where is the shotgun at?" Mr. Torres-Castro responded in Spanish
that there was a shotgun located under a mattress in the bedroom where the shells
were located, and he gave consent for the officers to search the house for
weapons. The district court determined that such consent was voluntary under the
totality of the circumstances. At some point, while the individuals were
assembled in the front room, the officers conducted a pat-down search of each
male for weapons.

Officer Guevara located the shotgun in the bedroom and noticed that it
appeared to be an illegal sawed-off shotgun. About five minutes elapsed from the
officers' entry into the home until their discovery of the shotgun. Because the
officers knew it was illegal for Mr. Torres-Castro to possess a sawed-off shotgun,
they notified Agent Francisco Ortega of the Bureau of Alcohol, Tobacco, and
Firearms (ATF), who arrived at the house shortly thereafter. Before Agent Ortega
arrived, Officer Phel moved Mr. Torres-Castro to the bedroom where the gun was
located and attempted to question him. Mr. Torres-Castro was uncooperative and
Officer Phel handcuffed him. At that time, Officer Phel arrested Mr. Torres-Castro for
possessing an illegal weapon and for charges relating to the
mistreatment of his girlfriend. When Agent Ortega arrived at the house, he gave
Mr. Torres-Castro Miranda warnings. Thereafter, Mr. Torres-Castro made
incriminating statements.

Mr. Torres-Castro moved to suppress the evidence found in his house and
any statements he made to the officers. The district court denied the motion after
an evidentiary hearing. It first held that the protective sweep performed by the
officers violated the Fourth Amendment because the sweep was not performed
incident to an arrest. Notwithstanding, it found that the protective sweep did not
taint any subsequently obtained evidence or statements. The district court
reasoned that the officers had probable cause to arrest Mr. Torres-Castro and
question him about weapons based upon independent sources prior to the
protective sweep. It further held that Mr. Torres-Castro voluntarily admitted the
officers to his home, consented to a search of the residence, and voluntarily made
incriminating statements.

Discussion

A. Protective Sweep

In Maryland v. Buie, 494 U.S. 325, 327 (1990), the Supreme Court stated
that "a protective sweep is a quick and limited search of premises, incident to an
arrest and conducted to protect the safety of police officers or others." The Court
held that such protective sweeps are permitted when officers "possess[] a
reasonable belief based on specific and articulable facts which, taken together
with the rational inferences from those facts, reasonably warrant[] the officer in
believing that the area swept harbor[s] an individual posing a danger to the
officer or others." Id. (internal citations and quotation omitted). A sweep must
last no longer than necessary to dispel the "reasonable suspicion of danger and in
any event no longer than it takes to complete the arrest and depart the premises."
Id. at 335-36.

Following Buie, we held that such "protective sweeps" are only permitted
incident to an arrest. SeeUnited States v. Davis, 290 F.3d 1239, 1242 n.4 (10th
Cir. 2002) (rejecting an argument that protective sweeps should sometimes be
permitted absent an arrest); United States v. Smith, 131 F.3d 1392, 1396 (10th
Cir. 1997) (noting that a protective sweep "is a brief search of premises during an
arrest to ensure the safety of those on the scene"). In United States v. Garza, an
unpublished disposition, we declined to extend the protective sweep doctrine to
cases where there is no arrest. See 125 Fed. App'x. 927, 931 (10th Cir. 2005)
("We have twice found that a protective sweep may only be performed incident to
an arrest."). Garza made clear that based on this court's prior published cases of
Davis and Smith, protective sweeps must be performed incident to an arrest.
Id.

Mr. Torres-Castro argues that any expansion of the protective sweep
doctrine is unjustified because the doctrine is premised on the assumption that an
arrest is confrontational by its very nature. Mr. Torres-Castro argues that
expanding the doctrine will encourage law enforcement to gain legal entry
through "knock and talk" requests and then gather evidence without any
requirement of suspicion or compliance with the Fourth Amendment. We
recognize that a majority of circuits have extended the protective sweep doctrine
to cases where officers possess a reasonable suspicion that their safety is at risk,
even in the absence of an arrest. See,e.g., United States v. Martins,
413 F.3d
139, 150 (1st Cir. 2005) ("[T]he key is the reasonableness of the belief that the
officers' safety or the safety of others may be at risk."), certdenied 126 S. Ct.
644 (2005); United States v. Miller, 430 F.3d 93, 100 (2d Cir. 2005) ("The
restriction of the protective sweep doctrine only to circumstances involving
arrests would jeopardize the safety of officers in contravention of the pragmatic
concept of reasonableness embodied in the Fourth Amendment."); United States
v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc) ("[W]e hold that arrest is
not always, or per se, an indispensable element of an in-home protective sweep . .
. ."), certdenied, 543 U.S. 955 (2004).

We appear to be joined by only the Eighth Circuit and perhaps one panel of
the Ninth Circuit, although there also appears to be an intra-circuit conflict, in
our belief that a protective sweep must be performed incident to an arrest. SeeUnited States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005) (declining the
invitation to "extend Buie further"); United States v. Reid, 226 F.3d 1020, 1027
(9th Cir. 2000) (refusing to permit a protective sweep where the defendant was
not under arrest); contraUnited States v. Garcia, 997 F.2d 1273, 1282 (9th Cir.
1993) (permitting a protective sweep after a consented entry). Whatever our
view of the holdings in Davis and Smith, we are not free to overrule
those
decisions and adopt the majority view allowing protective sweeps based on
reasonable suspicion alone. SeeDubuc v. Johnson, 314 F.3d 1205, 1209 (10th
Cir. 2003) (noting that a panel of this court may not overrule another panel).
Instead, we must conclude that a protective sweep is only valid when performed
incident to an arrest­at least until an en banc panel of this court determines
otherwise.

Even under our precedent, however, a search may precede an arrest and
still be incident to that arrest. SeeRawlings v. Kentucky, 448 U.S. 98, 111
(1980) ("Where the formal arrest followed quickly on the heels of the challenged
search [it is not] particularly important that the search preceded the arrest rather
than vice versa."). We have followed Rawlings to allow searches of vehicles and
persons prior to an arrest. SeeUnited States v. Lugo, 170 F.3d 996, 1003 (10th
Cir. 1999) (search of a vehicle preceding arrest); United States v. Anchondo, 156
F.3d 1043, 1045 (10th Cir. 1998) (search of a person preceding arrest). In such
cases, there must be a legitimate basis for the arrest prior to the search, and the
arrest must follow quickly thereafter. Anchondo, 156 F.3d at 1045. There is no
reason why the same rule should not apply to protective sweeps of a residence.
Protective sweeps, wherever they occur, may precede an arrest, and still be
incident to that arrest, so long as the arrest follows quickly thereafter. SeeUnited States v. Donaldson, 793 F.2d 498, 503 (2d Cir. 1986) (holding that a
search of an apartment to secure an individual immediately prior to an arrest was
incident to an arrest).

The time at which an officer forms the intent to arrest is not determinative.
Anchondo, 156 F.3d at 1045. Instead, to determine whether a search is incident
to an arrest, we ask only (1) whether "a legitimate basis for the arrest existed
before the search," and (2) whether "the arrest followed shortly after the search."
Id. Of course, the legitimate basis for an arrest is purely an objective standard
and can be for anycrime, not merely that for which the defendant is ultimately
charged after the protective sweep. SeeLugo, 170 F.3d at 1003 (traffic
violations were a legitimate basis for a search, even though defendant was
ultimately arrested for possession of drugs); seealsoBrigham City
v. Stuart, 126
S. Ct. 1943, 1948 (2006) (action is reasonable under the Fourth Amendment as
long as the objective circumstances justify the action); Whren v. United States,
517 U.S. 806, 813 (1996) (holding that the actual motivations of officers are
irrelevant for determining Fourth Amendment reasonableness).

The primary factor for determining whether a search is incident to an arrest
is the time between the search and the actual arrest. SeeAnchondo, 156 F.3d at
1045 (noting that we consider whether the "arrest followed shortly after the
search"); Lugo, 978 F.2d at 634 (a search is incident to an arrest if it is
"contemporaneous" with the arrest). We note that courts have found that a search
may be incident to an arrest in cases where the search and arrest were separated
by times ranging from five to sixty minutes. SeeUnited States v. McLaughlin,
170 F.3d 889, 891-93 (9th Cir. 1999) (five minutes); United States v. Hrasky,
453 F.3d 1099, 1102-03 (8th Cir. 2006) (sixty minutes).

In this case, the officers had sufficient probable cause to arrest Mr. Torres-Castro prior to
their entry into his home based on his alleged abusive conduct
toward his juvenile girlfriend. Furthermore, the officers possessed the reasonable
suspicion needed to support their protective sweep as required by Buie.
Reasonable suspicion may arise when officers know an occupant has a weapon,
has threatened to use it in an unlawful manner, and may be present in the
residence. United States v. King, 222 F.3d 1280, 1284-85 (10th Cir. 2000).
Here, the officers had information that Mr. Torres-Castro possessed a weapon
and had threatened to use it on anyone who tried to take his girlfriend away. The
officers visited his home to question him about his treatment of his girlfriend. In
fact, Mr. Torres-Castro's girlfriend was present in the house at the time of the
officers' visit. While the officers did encounter Mr. Torres-Castro in the front
room upon their entry to the home, he was not handcuffed or otherwise
restrained. A reasonable officer could have feared that once Mr. Torres-Castro
understood the nature of the officer's visit, he might seek to do harm with his
weapon.

Furthermore, the officers did not know the identities of the other
individuals in the house, let alone their relationship to Mr. Torres-Castro. The
officers observed several individuals retreat into the back rooms of the house as
they approached. Given the nature of Mr. Torres-Castro's threats to use a
weapon, and the behavior of the other individuals in the home, we think a
"reasonable officer would take precautions to make sure that no hidden threat
was lurking in the house." SeeUnited States v. Hauk, 412 F.3d 1179, 1192
(10th
Cir. 2005) (permitting a protective sweep where a second individual was thought
to be present during an arrest for drug crimes).

The government does not argue that the district court's analysis was
incorrect; rather, it argues that the court should reconsider its position that a
protective sweep may only be performed incident to arrest and that this protective
sweep would be justified under the expanded view of Buie. Aplee. Br. at 12-15,
18. Given the government's position on appeal, and because we hold below that
the protective sweep was not the "but for" cause for the seizure of certain
evidence, and that other evidence would have been inevitably discovered, we
need not resolve the question of whether the protective sweep was incident to Mr.
Torres-Castro's arrest.

B. Shotgun Shells, Shotgun and Admission of the Shotgun's Location

For evidence to be suppressed, Mr. Torres-Castro must first demonstrate
that his Fourth Amendment rights were violated. United States v. Nava-Ramirez,
210 F.3d 1128, 1131 (10th Cir. 2000). Assuming, as we do for this portion of
the opinion, that the protective sweep was not incident to the arrest, Mr. Torres-Castro has
established the requisite Fourth Amendment violation. But, Mr.
Torres-Castro must also show a "factual nexus between the illegality and the
challenged evidence." Id. In other words, Mr. Torres-Castro must show "but
for" causation; that "the evidence sought to be suppressed would not have come
to light but for the government's unconstitutional conduct." Id. If evidence is
attributed to a Fourth Amendment violation by this causal relationship, it may be
tainted.

"But for" causality is a necessary, but not a sufficient, requirement for
suppression. Hudson v. Michigan, 126 S. Ct. 2159, 2164 (2006). Even if Mr.
Torres-Castro can demonstrate that the evidence resulted from the protective
sweep, the government may avoid suppression by demonstrating that the evidence
would have been inevitably discovered, that it was discovered by independent
means, or that it was so attenuated from the illegality as to dissipate any taint
from the Fourth Amendment violation. Nava-Ramirez, 210 F.3d at 1131. In
considering whether evidence seized is so attenuated from the illegality as to
dissipate any taint, we balance the "temporal proximity of the Fourth Amendment
violation," any "intervening circumstances," and the "purpose and flagrancy of
the official misconduct." United States v. King, 990 F.2d 1552, 1563-64 (10th
Cir. 1993); seealsoBrown v. Illinois, 422 U.S. 590, 603-04 (1975)
(listing the
three factors). If the government can demonstrate inevitable discovery, discovery
by independent means, or attenuation, the evidence is not fruit of the poisonous
tree and need not be suppressed. United States v. DeLuca, 269 F.3d 1128, 1132
(10th Cir. 2001).

With respect to the shotgun and his various statements made to the police,
we conclude that Mr. Torres-Castro has not established a factual nexus between
the protective sweep and that evidence. While there may be a factual nexus
between the protective sweep and discovery of the shotgun shells, it is apparent
from the district court's factual findings that the shells would have been
inevitably discovered and, accordingly, should not be subject to suppression.

Those factual findings plainly support the conclusion that Mr. Torres-Castro voluntarily
admitted the officers to his home. The statements from the
girlfriend (involving domestic abuse and a gun) furnished a strong objective
basis for the officers to ask Mr. Torres-Castro about the presence of a gun and to
request permission to search his home for it. Likewise, having seen several
individuals move from the front room deeper into the home, we think a
reasonable officer would have asked the same questions and made the same
request regardless of a protective sweep. Even if the officers were actually
motivated to question Mr. Torres-Castro about the gun because they discovered
shells during the protective sweep, their subjective motivations are irrelevant
because the Fourth Amendment turns on the objective reasonableness of the
circumstances. SeeUnited States v. Carson, 793 F.2d 1141, 1149 (10th Cir.
1986) ("[T]he request itself, even if motivated by the fruits of the prior illegality,
is not exploitation."). Furthermore, Mr. Torres-Castro was cooperative in
identifying the location of the shotgun and in consenting to a search of the home
for weapons. We find no evidence to suggest that he would have withheld his
consent to search, absent the protective sweep.

Mr. Torres-Castro argues that because he knew the officers discovered
shotgun shells during the protective sweep, this knowledge was "instrumental in
his consenting to the search for the shotgun," because he knew "the police had
discovered potentially incriminating evidence." Aplt. Br. at 38. He relies on
United States v. Ward, 961 F.2d 1526, 1535 (10th Cir. 1992). Ward involved
an
illegal seizure of a person on a train, which was followed by that person's
consent to search. Id. at 1534-35. In Ward, we held that the defendant's
subsequent consent to search was tainted by the illegal seizure. Id. at 1534-45.
In this case, however, there was no illegal seizure. Mr. Torres-Castro voluntarily
allowed the officers into his home. Furthermore, the discovery of the shotgun
shells was not inherently incriminating because the officers did not know at the
time that it was illegal for Mr. Torres-Castro to possess the shells, the shells
could have belonged to any of the other individuals in the home, and the shells
did not indicate that the shotgun that was subsequently found was an illegal
sawed-off shotgun. In addition, Officer Guevara specifically informed Mr.
Torres-Castro that he did not have to reveal the shotgun's location, further
suggesting that the protective sweep was not the "but for" cause of Mr. Torres-Castro's
identification of the location of the shotgun, consent to search, and
immediate discovery of the shotgun. For these reasons, we reject Mr. Torres-Castro's argument
that but for the protective sweep, the officers would not have
asked him about the presence of the shotgun and would not have obtained his
consent to search the house for weapons.

There does appear to be a factual nexus between the protective sweep and
discovery of the shotgun shells. After all, the shells were located by Officer
Elrick while he conducted the sweep. Regardless of this causal connection,
however, the shells should not be suppressed because they would have been
inevitably discovered. They were located in a clear plastic bag in an open closet
in the bedroom where the shotgun was located. Because they were in plain view,
the officers would have discovered the shells during their search for the shotgun,
which we have already concluded would have occurred regardless of the
protective sweep. Thus, the doctrine of inevitable discovery excepts the tainted
shells from suppression. SeeNava-Ramirez, 210 F.3d at 1131. Because
inevitable discovery is itself an exception to suppression, we need not engage in
the balancing of factors that we use to determine attenuation. Seeid. (treating
the attenuation analysis as distinct and separate from inevitable discovery and
independent source); United States v. Haro-Salcedo, 107 F.3d 769, 773 (10th Cir.
1997) ("The inevitability of discovering evidence by lawful means removes the
taint from evidence first discovered through unlawful means.") (citing Nix v.
Williams, 467 U.S. 431, 444 (1984)).

C. Post-Arrest Statements

Mr. Torres-Castro also argues that incriminating statements made after his
formal arrest and Miranda warnings should be suppressed as fruit of the
protective sweep. These statements are subject to the same analysis as the earlier
discovered evidence and Mr. Torres-Castro's statement and consent to search for
the shotgun. SeeUnited States v. Maez, 872 F.2d 1444, 1457 (10th Cir. 1989)
(noting that statements made after custodial arrest are still subject to the
exclusionary rule analysis).

We conclude that the statements made by Mr. Torres-Castro have no "but
for" relationship to the protective sweep, for the same reasons his earlier
statements relating to the shotgun lack such a relationship. In addition, Mr.
Torres-Castro's post-arrest statements were further distanced from the protective
sweep by the additional five to ten minutes it took Agent Ortega to arrive at the
house and begin interviewing Mr. Torres-Castro. Furthermore, by the time Agent
Ortega began his questioning, Mr. Torres-Castro had twice been warned that he
could refuse to answer questions, once by Officer Guevara, and once by Agent
Ortega via a Miranda warning. A Miranda warning itself may be a significant
intervening circumstance that can break any factual nexus between an illegal
search and subsequent incriminating statement. SeeOregon v. Elstad, 470 U.S.
298, 310-11 (1985) (noting that a careful administration of Miranda warnings can
"cure the condition that rendered the [earlier] unwarned statement inadmissible").
Here, Agent Ortega administered such a warning. He arrived on the scene after
the protective sweep and discovery of the shotgun, and thus his warning to Mr.
Torres-Castro was even more of an intervening act than the earlier one given by
Officer Guevara. Nevertheless, the encounter between Mr. Torres-Castro and the
officers had been largely consensual up to Agent Ortega's arrival. Accordingly,
we see no basis to conclude that the protective sweep was the "but for" cause of
the later incriminating statements.

AFFIRMED.

FOOTNOTESClick footnote number to return to corresponding location in the text.

1. Some facts were controverted and
dependent on the district court's
credibility determinations. When reviewing the denial of a motion to suppress,
we view the facts in the light most favorable to the government and for clear
error. United States v. Guerrero-Espinoza, 462 F.3d 1302, 1305 (10th Cir.
2006). Fourth Amendment reasonableness is reviewed de novo. Id. Mr. Torres-Castro
takes issue with several findings of fact by the district court. Aplt. Br. 13-14. We have reviewed
the record and find the district court's factual findings are
adequately supported by the record and its reasonable inferences.